State v. Lujan
| Decision Date | 28 February 1984 |
| Docket Number | CA-CR,No. 2,2 |
| Citation | 139 Ariz. 236,677 P.2d 1344 |
| Parties | The STATE of Arizona, Appellee, v. Paul LUJAN, Appellant. 3042. |
| Court | Arizona Court of Appeals |
Appellant was driving on Fry Boulevard in Sierra Vista on August 26, 1982, when he was stopped by police for erratic driving. There were several passengers in the car, and the officer that stopped the car noticed several empty beer containers inside on the floor. Appellant was asked to get out of the vehicle and move to the rear, whereupon the officer noticed an odor of alcohol on appellant's breath and that appellant was "swaying." Appellant could not produce his driver's license, and he failed a series of field sobriety tests. He was arrested and brought to the sheriff's department, where he took an intoxilyzer test. The test showed a .20 blood alcohol level. Appellant was indicted for driving while intoxicated while his license was suspended. After a jury trial, appellant was convicted and sentenced to serve six months in jail, three years of probation and participate in an appropriate alcohol treatment program.
Appellant attacks his conviction and sentence on appeal, raising several issues:
1. Whether he is permitted to expand arguments made at trial which contest the constitutionality of A.R.S. § 28-692;
2. Whether the presumption of intoxication is an essential element of the offense under A.R.S. § 28-692(B);
3. Whether the statute is unconstitutionally vague;
4. Whether the statutory punishment is grossly disproportionate to the crime;
5. Whether the statute violates due process restrictions involving strict liability crimes;
6. Whether the statute is unconstitutionally overbroad;
7. Whether the statute unconstitutionally prohibits plea bargaining;
8. Whether the breathalyzer test results were properly admitted; and,
9. Whether the indictment should have been dismissed for being duplicitous.
Many of the issues raised here by appellant were resolved by us in State v. Thompson, 138 Ariz. 341, 674 P.2d 895 (App.1983). In Thompson, we found that A.R.S. § 28-692 was neither vague nor overbroad, that it did not unconstitutionally prohibit plea bargaining and that the statute does not contain an unconstitutional presumption. We find no reason to overrule or distinguish Thompson on the basis of this case and uphold its conclusions. We proceed to the remaining issues.
Appellant contends, without argument from appellee, that he has standing to challenge the constitutionality of A.R.S. § 28-692(B). Since the provisions of that section were the basis for appellant's indictment and conviction, we agree. Appellant also contends that his arguments at trial concerning the statute's constitutionality were not as expansive as they are here, but that he should nonetheless be allowed to raise them here. Since appellant claims that § 28-692(B) is void, we will consider all of his appellate arguments, regardless of whether he raised them at trial. State v. Thompson, supra.
Appellant next contends that A.R.S. § 28-692(B) violates his due process rights, applying an argument strikingly similar to that employed in State v. Thompson, supra. The argument appears to be that § 28-692(B) carries with it a relatively large punishment, characteristic of a malum in se offense. If this offense is in fact malum in se, then criminal intent is required and the statute makes no provision for intent as a necessary element of the crime. Thus, appellant reasons, the statute is unconstitutional. Our holding in Thompson, finding § 28-692(A) was not a malum in se offense is equally applicable to § 28-692(B), since the punishment for the two sections is identical. We therefore find appellant's due process rights have not been violated.
Appellant next argues that the punishment for violating A.R.S. § 28-692 is disproportionately severe and that the statute is thus unconstitutional. He alleges that the punishment, when taken together with the alleged vagueness of the statute, the inability of an offender to challenge the presumption under § 28-692(B), and the strict liability nature of the crime, is unjustly severe. The test for a punishment that is allegedly too harsh is whether the mandatory sentence offends society's perceptions of decency. State v. Mulalley, 127 Ariz. 92, 618 P.2d 586 (1980). Among the factors to be considered are the nature of the crime and the offender and a comparison of similar statutory punishment schemes in other jurisdictions. State v. Mulalley, supra.
Since the issues of vagueness, presumption and criminal strict liability have been decided adversely to the appellant, we consider the severity of the punishment question by itself. Initially, we take notice of the...
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State v. MANZANEDO
...a result we are not confident the legislature intended. ¶ 11 Moreover, we find unpersuasive Manzanedo's reliance on State v. Lujan, 139 Ariz. 236, 677 P.2d 1344 (App.1984). There, we found an indictment duplicitous because the indictment had alleged in one count two actions expressly made s......
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State v. Kreyer
...680 P.2d 121, 126-127 (Sup.Ct.1983); State v. Thompson, 138 Ariz. 341, 674 P.2d 895, 898-899 (Ct.App.1983); State v. Lujan, 139 Ariz. 236, 677 P.2d 1344, 1346-1347 (Ct.App.1984); Burgv. Municipal Ct. for Santa Clara Judicial Dist., 35 Cal.3d 257, 198 Cal.Rptr. 145, 673 P.2d 732, 737-739 (Su......
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State v. O'Connor
... ... For analyses of similar statutes reaching the same result in other jurisdictions see Fuenning v. Superior Ct., County of Maricopa, 139 Ariz. 590, 680 P.2d 121, 126-127 (Sup.Ct.1983); State v. Thompson, 138 Ariz. 341, 674 P.2d 895, 898-899 (Ct.App.1983); State v. Lujan, 139 Ariz. 236, 677 P.2d ... 1344, 1346-1347 (Ct.App.1984); Burg v. Municipal Ct. for Santa Clara Judicial Dist., 144 Cal.App.3d 169, 192 Cal.Rptr. 531 (Ct.App.1983), aff'd 35 Cal.3d 257, 198 Cal.Rptr. 145, 673 P.2d 732, 737-739 (Sup.Ct.1983) cert. denied, 466 U.S. 967, 104 S.Ct. 2337, 80 ... ...